Police, Crime, Sentencing and Courts Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Rosser (Lab)]

As has been said, Article 22 of the general data protection regulation provides that a person has

“the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.”

It also provides that there is an exemption to this if the automated decision-making is explicitly provided in law. Section 14 of the Data Protection Act 2018 provides, as has been said, some safeguards based on Article 22 for cases where the law allows automated decision-making on things that may have a significant effect on a person. It provides that where a significant decision is made by automated means, the subject may request that the decision is retaken with human oversight. The section currently provides protections for a decision taken, as has once again been said, “solely” by automated means. The amendment would extend this provision to decisions taken solely “or significantly” by automated means.

The issue of automated decision-making will become, and indeed is becoming, increasingly prevalent in our lives—a point made by all sides during the passage of the 2018 Act, when we tried to add far stronger safeguards to the then Bill to prevent decisions that engaged an individual’s human rights being decided by automated means. On that basis, I am certainly interested in the points raised to extend the right of appeal to decisions that are based “significantly” on automated processing.

Finally, it is potentially concerning that the Government are currently consulting on removing Article 22 of the GDPR and the associated protections from UK law altogether. I believe that consultation closed last week. Can the Government give an indication of when we can expect their response?

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining this amendment, which relates to automated decision-making. Let me first say that the Government are committed to maintaining high standards of data protection and agree that the clarity of safeguards relating to automated decision-making is important. The Government are also aware of some of the difficulties faced by organisations in navigating the terminology of these automated processing provisions.

As all noble Lords have noted, to address this issue the Government are currently seeking evidence via a public consultation, which is being run by the Department for Digital, Culture, Media and Sport. As the noble Lord, Lord Rosser, noted, that consultation closed only last Friday. He also mentioned Article 22. The consultation is looking at the need for legislative reform of the UK data protection framework overall, including GDPR and the Data Protection Act 2018. It covers Article 22 of the UK GDPR, including organisations experienced with navigating the solely automated processing and similarly significant terminology. As I say, that consultation closed on 19 November.

In examining the responses to the consultation, the Government will consider the safeguards in respect of automated decision-making that involve personal data in the round. We will address this matter in the government response to the consultation, which we expect to publish in the spring. We also look forward to the report of the inquiry by the Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, and will take its conclusions and recommendations into account when bringing forward our proposals for legislation. In the meantime, with apologies for being brief, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I am grateful for that reply. This amendment and this concern are about far more than navigating terminology. It is actually a fundamental point, but I do not intend to keep the Committee any longer. I think I have made it clear that I am probing but, I hope, probing to an end. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Coaker (Lab)]

I note the work that the noble Lord, Lord McColl, has done on modern slavery over many years, and thank him for it. It is right for us to acknowledge that in speaking to this amendment.

I want to draw particular attention to the section of the noble Lord’s amendment that covers something that is often not recognised to the degree it should be when it comes to county lines gangs’ operations and the way cuckooing works. Proposed new sub-paragraph (ii) talks about when a person

“is unable to give free and informed consent”.

That is the crucial bit. Too often, people are asked, “Why have you allowed this to happen? Why have you let them take over your property?” It is almost as though they have given their consent. But they are sometimes so frightened that they give their consent because, if they do not, the consequences will be such that they live in fear. Somehow, the law does not seem to recognise that.

Proposed new paragraph (c)(ii) refers to someone being unable to give “free and informed consent”. This is absolutely crucial to stopping the offence of cuckooing. People sometimes appear almost as though they have left a property of their own free will, saying, “Here you are. Come into my property. Use it for drugs and county lines operations.” Then, sometimes—not always, but sometimes—the police say, “Well, what did you do about it? Why didn’t you stop it?” That does not reflect the real world. People are terrified; they are frightened. They are told, “If you don’t let us use your property and get out of it, or if you tell anyone about it, we are going to do X, Y or Z to you or to your family.” That is sometimes not recognised, but it is the crucial part of what the noble Lord’s amendment gets at. If we want to stop cuckooing, we must understand that people are coerced into giving their consent; often, the law seems to treat them as though they have given their consent willingly. If we are to stop cuckooing, we must understand the context in which it occurs. I hope that the noble Baroness will be able to reflect on that.

[Lord Sharpe of Epsom (Con)]

I am sorry to disappoint the noble Lord.

I am grateful to my noble friend Lord McColl for introducing this amendment which seeks to provide for a bespoke criminal offence to tackle what is known, as he pointed out, by the evocative name of “cuckooing”. I assure noble Lords that this Government take all forms of exploitation seriously and we are determined to tackle it. I fully sympathise with the intentions behind this amendment, as we recognise that these unscrupulous exploiters often target the most vulnerable in our society to control their homes and, as my noble friend argued most powerfully, against their will to perpetrate a range of crime types. This practice is often associated with drug dealing, which is a feature of county lines offending, but also encompasses other forms of exploitation types such as sex work, which not only devastates the lives of the victim but impacts the local community in which they live.

While I support the sentiments behind this amendment, we remain to be persuaded that a new offence is needed. There are existing powers that can be and are being used to disrupt cuckooing, including the use of civil preventive orders, such as closure orders and criminal behaviour orders, breach of which is a criminal offence. As to the criminal law, there are offences under the Misuse of Drugs Act 1971 which may be charged, specifically those under Section 4 relating to the supply of controlled drugs and under Section 8 relating to the occupier of premises knowingly permitting the production or supply of drugs from their property. The offence of participating in the activities of an organised crime group in Section 45 of the Serious Crime Act 2015 may also be relevant. That said, this is an area of the criminal law which we continue to examine.

Moreover, I am sure my noble friend would agree that were there to be a new offence, Section 1 of the Modern Slavery Act is not the proper place for it. That section deals with offences where a person exercises control over another person to hold them in slavery or servitude, or requires them to perform forced or compulsory labour. The focus is on controlling another person and not their property or belongings. Having said all that, we recognise the seriousness of this phenomenon, and we will continue to look into it and support law enforcement partners in their efforts to tackle this malicious crime. In the light of this assurance, I hope my noble friend will be content to withdraw his amendment.

[Lord McColl of Dulwich (Con)]

I thank the Minister for his reply and the noble Lord, Lord Coaker, for being so supportive. The problem is that this is falling between two stools, and I do not quite understand how the present law is going to be used to deal with this problem. I would like some explanation; perhaps the Minister could write to me explaining exactly how the present law can and should be used. Meanwhile, I beg leave to withdraw my amendment.